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The small print

Spare a thought for the technology lawyer. He or she can spend hours crafting a set of website or mobile terms and conditions the size of a small novella and what happens?

April 2014

You are presented with a link to the terms and conditions before you make your purchase and instead of reading them you pretend that you have and click 'I accept' instead.  Yes, you are allowed to complete your purchase but the terms and conditions remain neglected and unread like a book at a yard sale.

enter key on keyboardOf course, we all do this including the very lawyers who draft them.  No one has the time to read every set of terms and conditions they are presented with and, even if they did, the content of the terms is unlikely to affect their decision as to whether or not to proceed with the transaction.  So we continue with the legal fiction that by presenting terms to users and forcing them to scroll through them and/or click 'accept', the users are in fact agreeing to them.

The argument goes like this: Individual: "I didn't agree to sell my soul to the devil in return for that half price hamburger voucher".  Supplier: "Yes you did, you were presented with a link to the standard terms and you clicked 'I have read and accepted these terms', so you must have agreed to clause 57(7)(d)(viii) which states as follows:

'In consideration of the supply of the Voucher to you under and in accordance with these Terms of Use, you agree to offer your incorporeal, immortal essence ("Soul") to Beelzebub and/or any of his affiliates, employees, agents or representatives ("Beelzebub Parties") on demand, at no cost to the Beelzebub Parties and subject in each case to any conditions that the Beelzebub Parties may impose in their sole and absolute discretion, which for the avoidance of doubt may include, without limitation, conditions relating to the date of supply of your Soul and/or the method of obtaining your Soul'."

In the UK, it's not enough to present any old gibberish to consumers though: standard terms must be drafted clearly, in plain English and without any unnecessary 'legalese' or jargon.  So when it comes to drafting standard terms and conditions, and particularly when they are targeted at consumers, 'less is more', and any onerous terms should be brought to the consumers' attention.  In the above example, the 'sale of soul' wording shouldn't be buried at clause 57(7)(d)(viii), and to reduce the risk that it is unenforceable, it could be reworded as follows:

"By accepting the hamburger voucher you agree to give your soul to the devil if and when s/he asks for it."

But even if the drafting is succinct, clear and sufficiently prominent, there is still a risk for suppliers that their standard terms and conditions may be subject to scrutiny under UK law and could – at least in part - be held to be unenforceable on the basis that they are unfair under consumer legislation.  Luckily for any individuals who have agreed to offer up their soul in return for the aforementioned hamburger voucher, clause 57(d)(v)(iii) would almost certainly be unenforceable in the UK: the courts would require the supplier at least to throw in some fries as well.

If you have any questions on this article please contact us.

Louise Taylor

Louise Taylor

Louise considers whether a clause in which the consumer agrees to sell their soul, would be enforceable under English law.

"In the UK, it's not enough to present any old gibberish to consumers."